Scott Pilutik

I am an attorney and consultant living and working in Manhattan, focusing primarily on church/state constitutional law. I'm a recognized expert on the Church of Scientology organization. I also have strong interests in intellectual property law where it intersects with emerging media, and free speech.

Continuing where I left off at Tony Ortega’s post on the latest developments in the Laura DeCrescenzo lawsuit against Scientology, which finds Scientology suddenly between a rock and a hard place as Laura’s attorneys successfully moved to compel Scientology to hand over Laura’s PC folders…

The motion papers contain a fairly interesting dispute concerning the scope of the priest-penitent privilege, both generally and in California. One key question was (and may yet be if Scientology is permitted to appeal) is whether the privilege was lost when Scientology permitted Laura’s PC folders to be handled by third parties. In Roman Catholic Archbishop of Los Angeles v. Superior Court, 131 Cal.App.4th 417 (2005), the California Appeals Court found that any communications transmitted to a third party, even if that third party also is clergy, is a violation of California’s priest-penitent statute. Scientology attempted to distinguish itself from this case by arguing that Scientology is different because, well, it’s different, a subject about which Warren McShane, as part of Scientology’s opposition papers, blathers on and on

In some ways McShane is right, because the religious aspects of Scientology only vaguely resemble Catholic confession, the most obvious model for the type of communications the priest-penitent privilege has in mind to protect. It seems unlikely that any Catholic in history has confessed to the sheer number of confessions contained in an average Scientologist’s PC folder. Scientology confessions given in auditing also differ in that they’re written as opposed to spoken—and therefore more potentially detrimental to the penitent should they happen to be divulged. A priest’s memory isn’t nearly so reliable as the written word.

The body of priest-penitent case law doesn’t make much sense when you try to apply it to Scientology, who of course argue for a preposterously expansive interpretation, all the more convenient given Hubbard’s fastidious micromanaging and contention that his every word is scripture. If the law and its own reality don’t quite line up, Scientology contends that the law must treat it preferentially. And if everything within Scientology is religious and deserving of protection (except when it’s conveniently not. See, e.g., Narconon, Study Tech), Scientology is effectively impenetrable by the law.

It’s an argument that has served them well before, as the Headleys can attest. Their claim was ultimately denied by the Ninth Circuit as it found that Sea Org workers fell under the ministerial exception, a principle which, like priest-penitent, was also built around conventional religions with limited application, but which Scientology successfully managed to distend and enlarge into a bulletproof shield. A disturbingly perverse outcome to be sure.

Here, Scientology’s argument is even more perverse because of the policy upon which the priest-penitent privilege rests, namely the protection, privacy, and religious liberty of the parishioner who chooses to divulge secrets to a religious figure. The priest-penitent privilege exists to encourage discussions of the most private sort between religious followers and designated church figures. Without the privilege, such communications would not occur.

But if the underlying policy of the priest-penitent privilege is to allow parishioners to confess their deepest vulnerabilities without fear of greater disclosure, why is Scientology able to claim it? Different states view the question differently, as to who may claim the privilege, the priest or penitent. While the penitent may always assert the privilege, only in some states may the priest also lay claim. California is one of those states.

There may well be sensible reasons to allow the privilege to be asserted by the priest/church, but it is a dark perversion of the law to allow the priest to wield it as a weapon against the penitent, as is the case here. It is further troubling to allow Scientology to hide behind the privilege where the subject matter at issue is Laura DeCrescenzo’s PC folders, because the spiritual content of those folders pertains exclusively to Laura, and only incidentally, if at all, to Scientology. Upon Laura’s departure from and repudiation of Scientology, her PC folders should properly be viewed as having no further religious value to Scientology. It should be Laura’s privilege to waive if she likes, not Scientology’s to protect themselves against claims brought by Laura. But should it really surprise anyone that Scientology would take the legal position that a Scientologist’s PC folders are not really theirs, but Scientology’s?

Thank you for this analysis Scott. It clarifies the issues in this case, and gives me hope that it can break some new ground here. If it does, there are so many more women — too many — who could press a similar case.

I did not know you had a blog! Consider me a regular visitor from now on.

I’m not sure if this means anything or not but as I recall “PC Folders” are generated during auditing sessions (confessionals) but sec. checks are part of “ethics cycles” and explicitly not auditing. In fact, I think at the outset of a sec. check on the meter, the person being subjected to the sec. check is told by the person conducting it, “I am not auditing you.” Rather than engaged in tortured speculations about this, I’ll just leave it there.

Thanks for your insights into this very interesting case.

Ruby

Sec checks are kept in the PC folder along with other auditing.

Plumeria

Thank you for all of your comments at the Underground Bunker. Since abortion is legal, I was wondering what statute would be broken if the Co$ did admit to counseling Sea Org to have one? And would that vary from state to state? (BTW, I’m not in favor of abortion, just asking what the law is.)

Jgg

What is illegal is forcing someone to have an abortion, which is a criminal act.

Scott Pilutik

There is no criminal statute prohibiting the counseling of someone to have an abortion. There are civil common law torts, such as coercion and intentional infliction of emotional distress, which would naturally apply.

sugarplumfairy

“…It should be Laura’s privilege to waive if she likes, not Scientology’s to protect themselves…”

Absolutely..

Jgg

The privilege may be waived if criminal acts are involved. Also, how many of these confessions are religious? How many were voluntary? Weren’t they given to a third party to harass her, in which case they have already been waived? This is what the court will look at, and, if the plaintiff’s claims are true, much of it will be admissible.

Scott Pilutik

I understand your point but realize that the courts are ill fit to engage in line-by-line examinations of content to determine religious or nonreligious content, especially when they can more easily review on a categorical basis by simply determining whether the type of communication is religious in nature and decide whether or not everything made in that setting falls within the ambit of priest-penitent.

Jgg

Yes, the court is will probably distinguish between religious communications and secular ones, and admit the latter.

Damian DeWitt

“The body of priest-penitent case law doesn’t make much sense when you try to apply it to Scientology”

This is absolutely correct, and the reason is that the core Scientology practice is psychotherapy i.e. “auditing” as Chuck Beatty has tirelessly pointed out over the last few years.

From the beginning with Dianetics auditing has been promoted first as an alternative to standard psychotherapy and then as its replacement.

It is in nowise similar to auricular confession as practiced in the Catholic, Orthodox, Lutheran, and Anglican churches.

Once this is grasped everything falls into place and is confirmed by the fact that Scientology has a system of case supervision and an army of case supervisors just as psychotherapists do.

wannabeclear

So glad to discover you have a blog that adds to what Tony is writing at the Underground Bunker. As the child of a lawyer (and an avid Co$ watcher), would love to read more of your analysis about their legal shenanigans.

I’m fascinated (and sort of infuriated) by the idea that the “priest” can assert privilege even when the “penitent” has waived it. I guess it explains why this wasn’t used as an argument in Laura’s filings, but I can’t for the life of me think of any instance in which there’s a sensible reason why this would be the case. Do you know of any legal precedent where a court (in CA or elsewhere) has struck down or upheld the “priest” side of this privilege? It just seems counter-intuitive to the whole purpose of this privilege in the first place.

Scott Pilutik

Thank you. I think Canon law holds that the privilege belongs to the priest, so perhaps some jurisdictions are paying homage to the Catholic tradition. I believe there’s an old case where this came to a head, where a priest was found in contempt for refusing to divulge a communication with a criminal defendant who waived the privilege, hoping the priest would corroborate his version of events. The priest’s basis for refusal was Canon law–that it forbade him from divulging regardless that the defendant had waived. I think the name of the case was Kane something.

That’s basically the same justification Scientology is offering–everything needs to be secret because LRH said so, and we don’t need to explain our religious justification any further than that tautology. Now, even if you credit that instance as a justified basis to extend the privilege to the priest/church, we’re still looking at very different circumstances here, where the church is using Laura’s communications to defend themselves against her. This is perhaps the most perverse use of the privilege imaginable. And further indicative of how Scientology views its own parishioners as existing to further Scientology’s goals as opposed to their own.

Your “blathers on” description of Scientology’s brief reminds me of an old law school saying:

If the facts are on your side, pound the facts into the table. If the law is on your side, pound the law into the table. If neither the facts nor the law are on your side, pound the table.

Scott Pilutik

Yep. It’s often the case with them that they’ll pontificate for days in briefs and affidavits about a particular point for the sole purpose of distracting the reader from the fact that they’ve failed to address some extremely fundamental point that works against them. This was the case only recently in the Garcia case, where they cited case after inapplicable case where dismissal was warranted because this was a religious dispute, even though the reason the Garcias are asking for their money back has nothing whatsoever to do with religion. Scientology gets too cute by half when they try to explain how everything is religious because they say it’s religious, even if it too often works.

Jgg

In fact, Narconon says the same thing (auditing) is secular and aids drug withdrawal.

jensting

“But should it really surprise anyone that Scientology would take the
legal position that a Scientologist’s PC folders are not really theirs,
but Scientology’s?” Not a bit. When Alain Stoffen obtained his “ethics folder” – the good stuff, far better than the PC folder – through a screw-up on the part of the criminal organisation known as the “church” of $cientology, he made a photocopy and returned the original. A criminal complaint for theft was made against him by the Co$.